JUDGMENT 1. - This is an appeal against the judgment of the learned Sessions Judge, Jalore dated 23-11-1978 whereby the learned lower court has held the accused-appellant Mishriya guilty of the offences under Sections 307 and 326 IPC and has sentenced him to undergo four years' rigorous imprisonment together with a fine of Rs. 1,000/- and in default, to further undergo 6 months' rigorous imprisonment each under sections 307 and 326 IPC. Both the substantive sentences awarded under sections 307 and 32i IPC were ordered to run concurrently. However, the accused Tariya was acquitted of the offences under sections 307/34 and 326/34 IPC. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that on 18-1-1978, in the morning, complainant Bharta and Dharma were going from their village to their field. One Bhomla was proceeding ahead them. He was also going to his own field. It is alleged that when Bhomla passed by the well of Himmatsingh, accused Mishriya armed with an axe and accused Tariya armed with a lathi came from behind and accused Tariya inflicted a lathi blow on the body of Bhomla, by which, he turned round and at that point of time, accused Mishriya inflicted an axe blow, by which, Bhomla fall down. Bharta and Dharma ran and tried to rescue him and thereafter, both of them brought him first to his village and then after hiring a Jeep, they brought him to the Jalore Hospital, where his injuries were medically examined and on X-ray, it was found that there is a fracture on his frontal bone. A report of this incident was lodged by Bharta on the same day at about 3.30PM. However, the injury report and the X-ray report did not reach the police station. It alleged that the Head Constable Incharge of the Police Station gave a requisition for the examination of the injuries. The injury report was lost in transit and so, its carbon copy was produced and after obtaining the X-ray report, the investigation was commenced by the Investigating Officer on 4-3-1918. 3. It alleged that the Head Constable Incharge of the Police Station gave a requisition for the examination of the injuries. The injury report was lost in transit and so, its carbon copy was produced and after obtaining the X-ray report, the investigation was commenced by the Investigating Officer on 4-3-1918. 3. After usual investigation, a case against both these accused-persons was challaned in the court of learned Munsif & Judicial Magistrate, Bhinmal, from where, it was committed for trial to the court of learned Sessions Judge, Jalore, who after holding the trial convicted accused-appellant Mishriya as aforesaid and acquitted accused Tariya of the offences under sections 307/14 and 326/34 IPC. Hence this appeal. 4. I have heard Mr. T.S. Champawat, the learned counsel appearing for the accused-appellant and Mr. S.K. Mathur, the learned Public Prosecutor for the State. I have carefully gone through the record of the case. 5. Mr. T.S. Champawat, the learned counsel appearing for the accused-appellant has submitted before me that the investigation, in this case, has commenced after 14 days of the incident i.e. after the receipt of the X-ray report by the Police Station. He has further submitted that the original injury report has not been produced and secondary evidence of the injury report has been led with out seeking permission of the Court and thirdly, he has submitted that in this case, offence under s. 307 IPC is not at all made out because it is a case of only one injury for which the accused cannot be convicted of both the offences i.e. one under s. 307 IPC and the other under s. 326 IPC. The Doctor has reported that the injuries are not dangerous to life and therefore, the accused-appellant Mishriya could not have been held guilty of the offence under s. 307 IPC, He has submitted that actually, the accused ought to have been convicted of the offence under s. 308 IPC and he should have been released on probation, 6. Mr. S.R. Mathur the learned Public Prosecutor has submitted that in this case, no secondary evidence has been led. Mr. S.R. Mathur the learned Public Prosecutor has submitted that in this case, no secondary evidence has been led. The injury report that has been filed in the court is of course, a carbon copy of the original report but it is signed by the Doctor personally and secondly it bears the thumb impression of the injured and, therefore, it is an original report and no permission of the court was necessary to lead evidence about this report. Mr. Mathur has submitted that in this case, the investigation has been commenced late on account of the non-receipt of the injury report and the X-ray report in time but for that, the injured is not at all responsible. It was for the Police to have obtained the injury report as and the X-ray report early but they did not do so and waited for it in due course but that, of course, is no reason to disbelieve the testimony of the eye witnesses which have been named in the FIR which was lodged on the same day. The statements of the witnesses are consistent with the version contained in the FIR. He has, therefore, prayed that the judgment deserves to be sustained. 7. I have given my most a earnest consideration to the rival submissions made at the bar. In this case, it is true that the investigation has been started after 14 days of the incident because of the non-receipt of the X-ray report and the late receipt of the injury report but the incident was reported on the same day and in that report Ex. P. 1, which was filed by complainant Bharta, it has been mentioned that the occurrence has been seen by Bharta and Dharmla and the person who injured in that occurrence was Bhomla. The place of the occurrence was near the well of Himmatsingh. it has further been mentioned that accused Mishriya was armed with an axe and accused Tariya was armed with a lathi and accused Mishriya gave an axe blow on the head of Shomla. Accused Tariya has been given benefit of doubt an account of the fact there is a discrepancy amongst the witnesses as to whether the injury was inflicted on the bead, neck or scapular region. More over, no specified injury was noticed by the Doctor and he has only stated that the patient complained of pain. Accused Tariya has been given benefit of doubt an account of the fact there is a discrepancy amongst the witnesses as to whether the injury was inflicted on the bead, neck or scapular region. More over, no specified injury was noticed by the Doctor and he has only stated that the patient complained of pain. Under these circumstances, the accused Tariya has been given benefit of doubt. So far as accused Mishriya is concerned, all the three eye witnesses of the occurrence i.e, PW 1 Bharta, PW 2 Bhomla injured and PW 3 Dharmla have categorically stated that on the date of the occurrence in the morning at about 7.30 or 8 AM Bhomla was going to his field ane Bharta and Dharmla followed him. It is alleged that when Bhomla reached near the well of Himmatsingh, accused Mishriya armed with an axe and accused Tariya armed with a lathi came from behind. Initially, Tariya inflicted a lathi blow on the head of Bhomla, by which, he turned round and thereafter, accused Mishriya inflicted an axe-blow on his head. On this aspect of the matter, a thorough cross-examination has been made with these witnesses but the testimony of these three witnesses has been consistent and it could not be shattered inspite of a thorough cross-examination. Moreover the testimony of these three witnesses is amply supported by the testimony of PW 4 Dr. B.L. Rai. He found one incised wound 10 ems x 0.5 cm x Bone deep on right forehead. In the opinion of the Doctor, this injury on the head was caused by sharp-edged weapon and was within the duration of 6 to 10 hours at the time of the examination. He has proved the injury report Ex. P. 3. That report is an original report because it is signed by the Doctor and it bears the thumb impression of the complainant (injured). He has proved the X-ray plates and X-ray reading report. According to him, this injury was grevious and could have been caused by an axe. He has opined that this injury was not such which may have caused the death of Bhomla. Even, it was not dangerous to life. It is, therefore, clear from the testimony of the Doctor as well as the alleged eye witnesses that this injury was inflicted by accused. He has opined that this injury was not such which may have caused the death of Bhomla. Even, it was not dangerous to life. It is, therefore, clear from the testimony of the Doctor as well as the alleged eye witnesses that this injury was inflicted by accused. Mishriya with an axe and that has caused a fracture of his frontal bone. It was not dangerous to life and on account of this injury, the death of the injured was not likely to result and, therefore, in my opinion, the learned lower court has erred in holding the accused-appellant Mishriya guilty of the offence under s. 307 IPC. Actually, it is a case of causing one grevious injury by sharp edged weapon and, therefore, the accused-appellant Mishriya has been rightly held guilty of the offence under s. 326 IPC. 8. The occurrence took place on 18.2-1978 i.e. almost 10 years have elapsed. The accused has been sentenced to four years' rigorous imprisonment together with a fine of Rs. 1,000/- and in default to under-go 6 months' rigorous imprisonment. He has not repeated the blow, Looking to the fact that the injury was not likely to cause the death and it was dangerous to life, I feel that the ends of justice would be met if the substantive sentence awarded to the accused-appellant under s. 326 IPC is reduced from 4 years rigorous imprisonment to two years rigorous imprisonment. However, the sentence of fine awarded under s. 326 IPC.` deserved to be maintained. 9. In the result, I partially accept this appeal and set aside the conviction and sentence of the accused-appellant Mishriya under s. 307 IPC and maintain his conviction under.s. 326 IPC However, his sentence of 4 years rigorous imprisonment together with a fine of Rs. 1,000/- and in default, to under go 6 months rigorous imprisonment is reduced to 2 years rigorous imprisonment together with a fine of Rs. 1,000/- and in default to undergo 6 months rigorous imprisonment under s. 326 IPC. He is acquitted of the offence under s. 307 IPC. He is on ball. His bail bonds are cancelled. He is directed to surrender himself before the learned Sessions Judge to undergo the sentence imposed against him under s. 326 IPC. The learned Sessions Judge, Jalore is directed to effect the arrest of the accused to undergo the sentence imposed against him.Appeal party accepted. *******